St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1887-11-05
UNPATENTED LANDS.
An Important Law Suit to Land
Claimants, GrantOrs and County,
City and Territorial and State
TreaSurerS.

Claimants, GrantOrs and County,
City and Territorial and State
Treasurers.
Special to the Globe.
DEADwoOD, Nov. 1.-The case en-
titled edward Calhoun VS.. Edwin G.
Flynn, as treasurer of Custer county,"
in which Chauncey l.. Wood appears for
plaintiff and District Attorney Frye for
respondent, is one of more than ordinary
interest to many landliolders and pub
lie OfficialS-nay, to all taxpayers in the
territory and other parts of the West.
The case was taken to Pennington cOun-
ty. before L. S. Judge Thomas, on stip-
ulatiOn, argued and submitted upon an
agreed statement of facts. The chit of
the case Is that Calhoun seeks tOreStrain
the county treasurer from collecting the
tax upon his land. The agreed facts are
that Calhoun pre-empted and proved up
on quarter-SectiOn of land i'll Custer
county early in 1888; publication
and all the forms were complied
with, but the claimant and
plaintiff had the evidence of his wit
nesses taken by notary public of Gus
ter county in accordance with prac-
tice then allowed and recognized as law
full by the land department.; that on
Oct. s, 1888, claimant in person sub
mitted his proofs and such other evil
dence as was required to the register
and recorder of the local land office at
Deadwood; paid 300, the government
price of the land, all of which was
ACCEPTED BY THE AGENT OF THE GOV
ERNMENT,
and the patent receipt was issued to the
claimant. Nearly four years later, to-
wit: in March, 1887, the commissioner
of the general land office held the proof
insufficient because the dispositions OF
witness had been taken by notary
public instead of their appearing with
claimant before the register Oh the day
named in the publication, and he sus-
pended the entry, allowing time for
new proof, failing which the entry
should be cancelled. The claimant
again made proof Aug. 6, 1887. A tax
had been levied on this land each year
since 1888. The question in the case is,
was the land subject to taxation dur
ing the time from Oct. 8, 'S3, to Oct. 6,
81, during which period Commissioner
Sparks holds that the claimant had es-
tabliShed no equitable or other title to
the land. A temporary injunction was
granted by the court restraining the
treasurer of Custer county from collect
lU3 tllC tQA lCNlCu III COtIOW
and advertised for sale.
This is one of many embarrassing
cases that have come up in consequence
of the present commissioner of the gen
eral land Office reversing the practice
of his predecessor in land filings and
proofs; and. as they are all new cases,
dating back in no instance before the
present federal administration, there is
a scarcity of precedents to guide c0un-
sci and judges; no rulings or decisions
bearing on such cases can be found, eX-
cept such as hold an analogous princi-
pleas the Immigrant title cases of the
Northern Pacific road and its grantees.
In the present case this lack of citations
to blaze the judicial path was so far felt
by the court that after the first present
alton of the case
HE HELD HIS DECISION BACK
until counsel could make further search
and submit other arguments. There is
a vast deal involved in this case, IL it is
followed to a dernier resort, for land
holders, state, territorial county and
city treasurers and taxpayers. For If
the treasurer of Custer county, Dakota,
can be restrained from collecting this
specific tax from the land of this
plaintiff, and if the latter can recover
back from Custer county all the taxes
ne pdlu Ill all ullOSe years Wucu Tile tiIlc
of his land was still in the government.
vast army of taxed land-hOlders, SINH
larly situated under the technical rui-
ings of Commissioner Sparks, can col
lect amounts from territorial and local
treasures that will throw upon the tax
payers an extra burden which there are
few counties in the West able, and none
willing, to bear. If, on the other hand,
the principle is affirmed by the supreme
court that the title to land vests with
the making of final proof in accordance
with the rules of the department. con-
sequences equally complicated and
embarrassing to the government will
result. Until some of the litigation
pending and to grow out of Commits
sioner Sparks land policy has been
passed upon by the courts, or adjusted
by additional acts of congress, it cannot
be told just what consequences to land
claimants and their grantees, to holders
of liens upon lands the title to which
has been unsettled, and what claims of
treasurers and cross-claims of taxpayers
are likely to follow. This case before
Judge Thomas is but the beginning of
much such annoyance and completely
of claims, 1t is likely.